Brett M. Kavanaugh 05/15/2003 06:12:44 PM

Record Type: Record

To: Jennifer R. Brosnahan/WHO/EOP@EOP cc: Subject:

JUSTICE JANICE ROGERS BROWN - CANDIDATE FOR SUPREME COURT

I. BACKGROUND AND SUMMARY

Janice Rogers Brown would be the first African-American woman to sit on the Supreme

Court of the . She is 52. She is married and has one son from her marriage to a

previous, now-deceased husband who died of cancer approximately 13 years ago.

Janice Brown grew up as the daughter of a sharecropper turned military man in

segregated . Her family refused to use segregated facilities, which she said "meant no

movies, no restaurants, and on some occasions y,0u go thirsty." Brown worked to put herself

through State University at Sacramento, graduating as an economics major in 1974.

She was a member of the Black Students Union in college and considered herself a liberal: "In

reality, a lot of what that was about was that we were young. We thought we had it figured out.

We had some of it right, but certain things after a while became to me crazy."

JustiCe Brown then attended UCLA Law School, graduating in 1977. She worked in

~ state government for the next 13 years. From 1977 to 1979, she served as an attorney in the

Bureau of Legislative Counsel. From 1979 to 1987, she was an attorney in the state Attorney

General's office, From 1987 to 1990, she was general counsel of the state Department of

,. . Business, Transportation & Housing. In 1990 and 1991, she was a lawyer in private practice at a l

~!

f!rm in Sacramento. In 1991, GoverriorPete Wilso~ asked her to be his general counsel (known ..

in California as Legal Affairs Secretary) .. Atthe tirrie, she publicly described herself as ·~more

conservative" than Governor Wilson.

She served as Governor Wilson's Legal Affairs Secretary until 1994, at which time she

· ·was appointed to the California Court of Appeal (the intermediate state appellate court), .where

she served for two years. In 1996, Brown was appointed to the California Supreme Court after a

·~ . ' somewhat controversial selection process. TlieJNE Commission (the state equivalent of the

ABA) rated her unqualified, primarily because of her limited judicial experience. Governor

Wilson and Attorney General Lundgren complained loudly about the rating, citing examples of

other jurists who had served ably without extensive judicial experience, and calling the rating ·

. . . .· . politically motivated. Governor Wilson stated: "I have personally experienced her intellect, her ·

scrupulous integrity, both personal and intellectual, her temperament; her courage and her . . . .· \ ...

character. I know her to be an outstanding choice. to fill the vacancy.!' Governor Wilso~

ultimately ignored the rating and proceeded with the nomination. Justice Brown stated at the

news conference announcing her nomination: "I have come a very long way from the cotton

fields of Luverne, Ala., to this nomination here today. But all of my life I was taught that yciu.

can aspire.to anything if you are willing to work for.it and to persevere. I dreamed adream like

·.this a long tin:ie ago--not this one but a more modest one--a dream that I would be a judge." At . . . the time, Justice Brown was publicly supported by all of her judicial colleagues on the Courtof

Appeal (six Republicans and three Democrats). In addition, the California Association of Black

Lawyers voted unanimously to endorseBrown.··

Justice Brown was subsequently approved by the statutorily authorized three-member Commission on Judicial Appointments and took her seat on the California Supreme Court, the first African-American woman to sit on that court Two years later, she was retained in a statewide election after being endorsed by, among others, the San Francisco Chronicle.

Justice Brown has stated that "if there's a recurrent theme in what I do, it's humility, the recognition of human limitations. There is no perfection in human endeavor. We just do the best

. we can." She has certainly done "the best she can," as her performance as a state Supreme Court

Justice over the last 5 years has only further demonstrated,

As a Justice on the most important state supreme court in the Nation (as measured by

California's population and by the Court's broad criminal and civil jurisdiction), she has made an extraordinary mark. She is a strong conservative jurist who has for~efully andpersuasively addressed many of the most difficult legal and constitutional issues of the day. Her written opinions are thoughtful and impressive -- deeper and more intellectual than the typical American / appellate judge -- and they plainly reveal a conservative philosophy of judging and. of constitutional and statutory interpretation.

Her record suggests that Justice· Brown likely would be a strong conservative jurist on the

United States Supreme Court, a philosophical amalgam of Justices Rehnquist, Scalia, Thomas,

Black, Frankfurter, Harlan, and Holmes. She is a textualilst, an originalist, a proponent of bright lines rather than balancing tests, deferential to legislative processes on controversial social issues, protective of prop~rty rights, protective of free speech, and tough on crime ·and the death penalty.

She has a libertarian streak on free speech, property rights, and certain kinds of sear~h and

seizure issues -- not unlike Justice Thomas and Justice Scalia.

Her writings revealthat she is quite confident of her views and very firm in her ' ' . convictions. She has no apparent concern about casting the solevote i~ support of a particµlar

.result or approach. Indeed, she very frequently dissents or concurs alone.'

She is committed to judicial restraint in those constitutional cases where the .

.constitutional provisions are vague or ambiguous (due process cases, for exampfe ), and she

·frequently cites opinions of Justices Frankfurter and Holmes to support her position in those

kinds of cases .. In constitutional cases mor~ generally, she is a textualistand originalist and

' ' ' ' believes that c~re constitutional principles ought nott~ be palanced. She routinely criticizes

balancing tests. as. anathema to principled judicial decisionmaking. In statutory cases, she is a

textualist, although she will cerfainlylook to other interpretive sources when the text is ' ' '

' ' ambiguous (as, of course, will all of the US. Sllpreme Co~rt Justices). .

· In her tenure on the California Supreme Court, she has addressed many of the most ·

. divisive and difficult legal issues -- issues· with' enormous social and economic ramifications~ ..

She has routinely upheld the California death penalty statute against constitutional

challenge (she· has voted notto affirm death sentences in a small handful 0ficases where. other .

errors warranted a new trial or sentencing proceeding).

She voted to uphold an abortion parental consent law against a constitutional

· challenge and argued that the majority's decision to strike down t~e law showed the ~'folly of.the.

court as philosopher.kings."

. She interpreted Proposition209 (the California anti-racial-preferences

referendum) to bar prefer~ntial contracting'. and preferential outreach programs. Her opinion

' ' ' ' ' ' 'advocated the·"colorblind" interpretation of both Title VII and the equal protection clause and

. . . ' was critical of United States Supreme Court decisions departing from the colorblind principle a~d effectively sacrificing individtl~i ri~fit§ t6r group ri~rtt~i

She voted to uphold an ~nti-gan~ injun~tion, employing compelling and powerful

· language about the evils of gang violence in urban neighborhoods and noting that "liberty

unrestrained' is . an invitation. to anarchy."

She voted to strike down as violative of First Amendment fights an injunction on

·harassing speech in the workplace, a decisi~n later supported by Justice Thomas, who wrote a

dissent from denial of certiorari in the same case .. (Her position would have allowed suits for

damages for harassing speech, but not a prior-restraint anti-speech injunction.)

She voted (along wi.th a unanimous California Supreme Court) that under state

' law and the federalConstitution; the Boy 1Scouts could not be forced to hire a gay scoutmaster.

She voted to uphold a county drug testing program, again employing strong

language about the role of the government as an employer as opposed to as a regulator.

She voted to carve out a new exception to the Fourth Amendment warrant

requirement for w~rantiess searches pl,lrsuantto community caretakihg functions (an exception a

fe_w other state courts also have adopted).

. . . She has consistently advocate~ a very strong pro~property-rights reading of tpe

takings clause, for exarriple, by voting to strictly scruti~ize·rent control ordinances on the ground

' that they can constitute a taking.

Her votes in Religion Clause cases suggest that she believes the Religion Clauses . I

neither require nor permit discrimination against religion,, and that the Legislature has ample .• . .. . ·. ' . . • . J .·· . . . toom to accommodate religion(that is, to single religion .outfot special favorable treatment in

appropriate circumstances). ------

In a separate concurrence in a decision in which she otherwise voted to uphold a. ban on certain assault weapons, she noted that total disarmament (that is, an outright state ban on firearms) would pose serious problems under the Second Amendment.

She has written decisions on torrlaw, punitive damages, securities regulation, and antitrust that are strong pro-business, common-sense decisions.

Finally, on one ofthe most critical issues dividing conservative judges on the

Supreme Court of the United States, she does not accept stare decisis when she believes an earlier decision was incorrect or unprincipled or unworkable. She has frequently argued (again" like Justices Scalia and Thomas often do) that a particular case or line of cases was wrongly decided and should be reconsidered or overruled.

As a jurisprudential matter, them appear to be only a few areas where a judicial

conservative might raise questions about her general approach.

First, on two Fourth Amendment issues, she has applied a slightly more expansive

interpretation of the Fourth Amendment's prohibition on unreasonable searches than some

conservatives judges might. In one case, she stated that those who live in a house with a·

probationer retain their Fourth Amendment rights even though probationers do not. In the other, .

she stated that the police constitutionally may not, absent ample justification, simply trespass

onto to look into an open window for e,vidence of criminal activity. Of course,

both Justices Scalia and Thomas, otherwise conservative judges, often interpret the Fourth

Amendment far more expansively that many (and sometimes all) of the other Justices on the

Supreme Court, forexample in drug testing and roadblock cases. In addition,it bears emphasis

that Justice Brown has authored several important pro-law-enforcement Fourth Amendment decisions, so there is little basis for concluding that sheis unduly expansive in her interpretation of the Fourth Amendment.

Second, Justice Brown has contended that the state constitutional guarantee of equal protection is not as toothless as the equivalent federal equal protection clause with respect to ordinary social and economic legislation. In particular, in one case exempting certaip categories of lawyers from mandatory continuing education requirements, she would have more closely scrutinized the legislature's line-drawing (means-ends scrutiny, as she put it) than did the majority in that case.

Third, in order to avoid additional delays in capital sentencing, she has argued that a late-filed state habeas petition should not be denied on procedural grounds alone. She contended that the vagueness of the state standard for procedurally barrfog late-filed state habeas petitions inevitably meant that there would be extensive state litigation over whether the case fell into one of the exceptions for delay~- and that the federal courts, in any event, would not rely on that state procedural ground in dismissing the federal habeas petition because it was not "regularly'' applied. All of this back and forth and to and fro, she said, would delay capital sentences from being carried out. Needless to say, her approach here, albeit somewhat counterintuitive for a conservative, reflects both her discomfort with vague balancing tests and her desire to streamline the capital sententing process, which are sound positions.

Notwithstanding her extensive record, it also bears mention thatthere are a few constitutional issues as to which we have little indication about her philosophy. For example, she has not opined on the proper scope of the Commerce Clause or of Eleventh Amendment sovereign immunity. At a minimum, we can predict that she likely would be a strong proponent of Eleventh Amendment sovereign immunity given her long experience in state government and in the state attorney general's office (although she might be somewhat uncomfortable that the text of the Eleventh Amendment does not mention sovereign immunity).

Because she rose from humble beginnings and would be the first African-American woman on the Supreme Court, we are cautiously optimistic that Justice Brown's confirmation chances are favorable. Absent an unforeseen situation, there likely would be 45 solid Republican votes for Brown (with Senators Collins, Snowe, Specter, Jeffords, and Chafee the likely question marks).

As to the Democrats, several Democratic Senators who are running for re-election in

2002 are from states where it may be difficult, for a variety of reasons, to oppose Janice Brown.

They include Max Cleland (Georgia), Mary Landrieu (Louisiana), and Jean Carnahan (Missouri).

In addition, Zell Miller (Georgia), John Breaux (Louisiana), Harry Reid (Nevada),

(West Virginia), and (Nebraska) are less likely to yield to the interest groups on a

Janice Brown nomination than other Democrats might. To the extent abortion becomes a (or the) focal point of the debate over Justice Brown, Senators Johnson (South Dakota), Lincoln

(Arkansas), Conrad (North Dakota), Dorgan (same), and Baucus (Montana) may still be amenable to voting for her given their states' largely pro-life views. (Breaux, Byrd, Conrad,

Dorgan, Miller, Dodd, Feingold, and Nelson voted for Attorney General Ashcroft.)

That said, it is likely that certain interest groups would strongly oppose Janice Brown and that a sizeable percentage of Senate Democrats would vote against her. The opposition to her would likely focus on three points.

First, she is conservative, and opponents almost certainly would try to portray her as a might criticize her as injudicious or intemperate (and perhaps link this to her relatively aggressive 0. approach on stare decisis). In defending her writings, we can argue that she is equally passionate

in ruling for a criminal defendant who received ineffective assistance of counsel in a capital case

as she is in protecting the rights of property owners. In addition, her personal demeanor is - . . f

extremely soft-spoken and disarming, and she is an excellent oral advocate. She would make an

absolutely superb witness at a confirmation hearing. We t.herefore believe she would leave an

impression far different from Judge Bork, for example, whose personal appearance and demeanor

before the Committee only seemed to confirm what liberals already suspected and feared from

his writings.

Third, some might try to attack her as unqualified because she was voted unqualified in

1996 by a majorityof the California JNE Commission (the equivalent of the ABA in California).

Butthat rating was based largely on her supposed lack of requisite judicial experience for a seat

on the California Supreme Court. In response, Governor Wilson, Attorney General Lundgren,

and many others vigorously attacked the Commission as politically motivated. In any event, we

believe that it would be laughable for anyone now to argue that she is unqualified for the

Supreme Court given her years of judicial experience, the strength of her record on the California

Supreme.Court, her tenure as general counsel for the , and her service in

the Attorney General's office and other state offices. She isas qualified (really, more qualified)

by dint ofher experience than were several ·of the current Justices (Rehnquist, Thomas,

O'Connor, and Souter) when they were appointed to the Supreme Court. In addition, the

· intellectual depth of her opinions flatly belies any claim that she is not qualified.